Sources of Muslim Law

Introduction
Islamic jurisprudence draws on a variety of source materials of Islamic law to
explain Sharia, meaning the framework of Islamic law. The Quran and
Sunnah are the fundamental sources, both of which are uniformly recognized
by all Muslims. The Quran is Islam’s holy scripture, which Muslims consider
to be Allah’s direct message. The Sunnah is a collection of the Islamic
Prophet Muhammad’s religious activities and quotes as recorded by his
Followers and Shia Imams. Some schools of law, on the other hand, adopt
alternative approaches to determine the validity of a source. The main
sources do not address every possible scenario, jurisprudence must rely on
sources and genuine texts to determine the appropriate course of action.
Secondary sources of Muslim law as per Sunni schools of law are Muslim
jurists’ customs, judicial decisions, legislation, equity, justice and conscience.
The Hanafi school typically employs representational reasoning and logical
reasoning, whereas Maliki and Hanbali tend to rely on Hadith. The Quran,
Sunnah, consensus, and aql are the four sources used by the Usuli school of
Ja’fari jurisprudence among Shia. They focus on aql (intellect) to find broad
concepts founded on the Quran and Sunnah and employ usul al-fiqh as a
method to understand the Quran and Sunnah in various contexts, while
Akhbari Jafaris depend more on Hadith and not follow ijtihad. According to
Muslim law, there are fewer differences in the actual application of
jurisprudence to ceremonial traditions and social interactions between Shia
and the four Sunni schools of law, despite crucial differences in jurisprudence
foundations.
The personal law of Muslims is based on Islam. Islam had its origin in Arabia
and from whence it was transplanted into India. In Arabia, Prophet Hazrat
Mohammed, himself an Arab, promulgated Islam and laid down the foundation
of Islamic law. The main groundwork of Islamic Legal System was nourished
and developed by Arab-jurists, and the real fountainhead of Islamic
Jurisprudence is to be found in the pre-Islamic Arabian customs and usages of
the 7th century of the Christian era.

Primary sources of Muslim Law

The Muslim law has been derived from various primary sources. These are
classified as:

1. Sunna or Ahadis
2. Quran
3. Ijma
4. Qiyas
 Quran

It is the original or primary source of Muslim Law. It is the name of the holy
book of the Muslims containing the direct revelations from God through
Prophet. The direct express or manifest revelations consist of the
communications which were made by the angel, Gabriel, under directions from
God, to Mohammed, either in the very words of God or by hints and of such
knowledge which the Prophet has acquired through the inspiration (Ilham) of
God. All the principles, ordinances, teachings and the practices of Islam are
drawn from Quran. The contents of Quran were not written during the lifetime
of the Prophet, but these were presented during the lifetime of Prophet, in the
memories of the companions.

There is no systematic arrangement of the verses in the Quran but they are
scattered throughout the text. It contains the fundamental principles which
regulate the human life. The major portion of the Quran deals with theological
and moral reflections. The Quran consists of communications of God; it is
believed to be of divine origin having no earthly source. It is the first and the
original legislative code of Islam. It is the final and supreme authority.

Sunna (Traditions or Ahadis)

The literal meaning of the term ‘Sunna’ is ‘the trodden path.’ It denotes some
practice and precedents of the Prophet, whatever the Prophet said or did
without reference to God, and is treated as his traditions. It is the second
source of Muslim law. Traditions are injunctions of Allah in the words of the
prophet. Where the words of Allah could not supply an authority for a given
rule of law, Prophet’s words were treated as an authority because it is
believed that even his sayings derived inspiration from Allah.
According to Muslim law, there are two types of revelations i.e. manifest
(Zahir) and internal (Batin). Manifest or express revelations were the very
words of Allah and came to the Prophet through the angel Gabriel. Such
revelations became part of the Quran. On the other hand, the internal
revelations were those which were the ‘Prophet’s words’ & did not come
through Gabriel, but Allah inspired the ideas in his sayings. Such internal
revelations formed part of Sunna. Traditions, therefore, differ from Quran in
the sense that Quran consists of the very words of God whereas a Sunna is in
the language of Prophet.

Sunna or traditions consists of:

• Sunnat-ul-Qual (word spoken)

• Sunnat-ul-Fail (conduct)
• Sunnat-ul-Tahrir (silence)
Ijma (Consensus)
With the death of the prophet, the original law-making process ended, so the
questions, which could not be solved either by the principles of the Quran or
the Sunna, were decided by the Jurists with the introduction of the institution
of Ijma. Ijma means agreement of the Muslim Jurists of a particular age on a
particular question of law, in other words, it is the consensus of Jurist’s opinion.

Those persons who had knowledge of law were called Mujtahids (Jurists).
When Quran and traditions could not supply any rule of law for a fresh problem,
the jurists unanimously gave their common opinion or a unanimous decision
and it was termed as Ijma. Not each and every Muslim was competent to
participate in the formation of Ijma, but only Mujtahids could take part in it.

There are three kinds of Ijma:

• Ijma of Companions: The concurrent opinion of the companions of

Prophet was considered most authoritative and could not be overruled
or modified.
• Ijma of the Jurists: This was the unanimous decision of the jurists
(other than companion).
• Ijma of the people or masses: It is the opinion of the majority of
the Muslims which was accepted as law. But this kind of Ijma has little
value.
Once a valid Ijma is constituted, it is regarded equal to Quranic verse i.e. it is
equally binding on people. Without Ijma, these rules of Islamic law would have
been diffused and incomplete. Its principles cover the vast subject. Ijma
authenticated the right interpretation of the Quran and the Sunna.

Qiyas (Analogical deductions)

The word Qiyas was derived from term ‘Hiaqish’ which means ‘beat together.’
In Arabic Qiyas means ‘measurement, accord, and equality.’ In other words, it
means measuring or comparing a thing to a certain standard, or to ‘establish
an analogy.’ If the matters which have not been covered by Quran, Sunna or
Ijma, the law may be deducted from what has been already laid down by these
three authorities by the process of analogy (Qiyas).

The Qiyas is a process of deduction, which helps in discovering law and not to
establish a new law. Its main function is to extend the law of the text, to cases
which do not fall within the purview of the text. For valid Qiyas, the following
conditions must be fulfilled:
 • The process of the Qiyas can be applied only to those texts which are
capable of being extended. The texts should not be confined to a
particular state of facts or rules having a specific reference.
• The analogy deduced should not be inconsistent with the dictates of
the Quran and authority of Sunna.
• The Qiyas should be applied to discover a point of law and not to
determine the meanings of the words used in the text.
• It must not bring a change in the law embodied.
If there is a conflict between two deductions, a jurist is free to accept any one
of the deductions from a text. Hence one analogy cannot abrogate the other.

Compared with other sources, Qiyas is of much lesser significance. The reason
is that on the analogical deductions, resting as they do, upon the application
of human reasons, which is always liable to error.

It may be concluded that the superstructure of Islamic Jurisprudence is

founded on Quranic verses and traditional utterance of Prophet, yet other
sources have also helped a lot in developing the sacred law in its present form.
It is due to the contribution of all the sources of Islamic law that an orderly
and systematic theory of the personal laws of Islam came into existence, which
governs the Muslim community.

Secondary sources of Muslim Law

Judicial decision – (Precedent)
Judicial precedent refers to the procedure by which judges follow earlier
decisions in cases with relatively similar facts. The idea of judicial precedent
is based on the principle of stare decisis, or conforming to what has already
been declared. In reality, this implies that lower courts must follow the
procedural rules established by higher courts in previous decisions. This
ensures that the law is satisfactory to both parties. However, it is to be
considered that the concept of “precedent” is not covered under Muslim law.
Kazis’ judgments were never regarded as precedents under English law.
‘Fatwas,’ which have both moral and legal authority, are the closest approach
to this theory in Muslim law. But while a Mufti would declare Fatwa on a
scholar, the Kazi was not obligated by it. Several Fatwa compilations exist,
the most notable of which is Fatwa-al-alam-giriyya. Many gift and Wakf
practices have been altered to safeguard women, and there is a cluster of
precedent under Muslim law. Today, the doctrine of stare decisis is
incorporated into Muslim law.

Custom
Hindus recognized that a custom, if otherwise legitimate, supersedes a
provision of sacred law as early as 1868. In the instance of Muslim law, the
Privy Council conveyed the same sentiment concerning conversions who
prefer to adopt Islam but keep their rules, but the Orthodox refused this
viewpoint, and the Shariat Act of 1937 was enacted. Despite the fact that all
schools trust in the Four Ancient Sources, they do not reject the concept of
Customs. The Prophet also kept existing Arabian customs, as long as they
did not contradict Muslim law. Customs are recognised as an addition to
Muslim law. Since there was no Islamic law code at the time, the Prophet and
his followers had to rely on conventions to resolve some issues. For example,
foster mother remuneration, civil wrongs recompense, and so on. According
to Muslim jurists, a legitimate Custom must meet four characteristics which
are mentioned below:
1. A custom must be repeated regularly, i.e. it must be continuous and
noticeable.
2. It should be applicable to everyone and should be rational.
3. It must not contradict any implied text of the Quran or the Sunnah.
4. It does not have to be very old.

Legislation
Legislation as per Cambridge Dictionary has been defined as “a law or set of
laws suggested by a government and made official by a parliament.”The
importance of legislation may be seen in the fact that, on the one hand, it
establishes rules and procedures through the parliament, while on the other
hand, it has state-level authority. Some parts of the legislation were
approved by the Hanbali school under the names Nizam (Ordinance/Decree),
Farmans, and dastarul amals, but they were not connected to personal laws.
The British were never allowed to interfere with personal laws, Muslim law
suffered greatly as a result of the lack of effective regulatory frameworks.
There were just a few laws in this area, including the Shariat Act of 1937 and
the Mussalman Wakf Validating Act of 1913. The Dissolution of Muslim
Marriage Act of 1939 was a breakthrough in Muslim law since it granted a
Muslim wife the right to a judicial divorce on particular conditions. Following
independence, in 1963, a motion to change Muslim personal law was
introduced in Parliament, sponsored by progressive Muslims but opposed by
the orthodox, resulting in few modifications in this area.

Equity, justice and conscience

One of the origins of Muslim law is the idea of fairness, justice, equity, and
excellent conciseness. These Islamic legal doctrines are known as ‘Istihsan’
or ‘Juristic Equity.’ Istihsan means “liberal construction” or “juristic choice,”
or what we now refer to as “equity law.” To respond to various conditions in
India, a number of Muslim provinces have been transformed. Although the
British originated this notion of equity, it has been adopted by various Muslim
law schools. This notion of equity was used in most of the matters handled
by British courts under Muslim law.
Precedent cases that have given a new
dimension to Muslim law
Judges emphasise the law when they investigate specific cases. These rulings
appear to set a precedent for future cases, and the courts will certainly follow
the precedents. The rulings are binding on all lower courts and it follows a
framework in terms of its application wherein decisions taken by the
Supreme Court will by default apply to High Courts and they can’t deny
rulings cited by the Supreme Court.

Chand Patel v. Bismillah Begum, 2008

In Chand Patel v. Bismillah Begum (2008) the following were the issues that
court considered adjudicating upon:
1. Whether marriage in Islam with a wife’s sister will be considered
void?
2. Another issue found was whether the wife will be entitled to
maintenance even after marriage with her sister is void or irregular?
Arriving on the fact sheet of the case the appellant married Mushtaq bee who
was the elder sister of the respondent. Further, with the consent of his 1st
wife (Mushtaq bee); he (the appellant) even decided to marry his wife’s
sister (Bismillah Begum). In response to this, the respondent stated that a
child was born out after they consummated in their marriage. Bismillah Bano
claimed that she had been lawfully married to Chand Patel for the past eight
years and that a ‘Nikahnama’ had been performed. She mentioned in her
petition that she and her daughter shared a home with Chand Patel’s first
wife and that the appellant had knowledge about the same and he had raised
the daughter. However, after a few years of marriage, her relationship with
her husband began to worsen to the point where he began to ignore her and
their small daughter. But the appalling argument found was that Chand Patel
claimed that the two had never married.
Supreme Court judgment
The Supreme Court ruled that if a Muslim man is married to his wife’s sister
while still married to his first wife, the marriage will be considered irregular,
not unlawful or void. The Supreme Court validated the lower court’s verdict,
ruling that the illegal marriage would continue to exist and that the Muslim
man would be obligated to support his wife until his marriage was
pronounced void by a court of competent jurisdiction. Chand Patel was
directed by the court to pay maintenance within six months of the date of the
judgement, as well as the respondent’s legal fees for arguing the case and
setting up a landmark judgment.

Shayara Bano v. Union of India, 2017

In Shayara Bano v. Union of India (2017), Rizwan Ahmed and Shayara Bano
were a married couple and they were living together for 15 years. In 2016,
Shayara Bano was divorced through immediate triple talaq (talaq -e biddat)
in response to this she filed a writ petition in the Hon’ble Supreme Court of
India praying for holding 3 practices talaq-e-biddat, polygamy, nikah-halala
as unconstitutional as they infringe Articles 14, 15, 21, 25 of the
Constitution. The practice of talaq-e-bidat allows a man to leave his wife by
saying ‘talaq’ three times in one sitting without his wife’s agreement. Nikah
Halala is a Muslim custom in which a divorced woman who wishes to remarry
her spouse must first marry and divorce a second husband before returning
to her first husband. Polygamy, on the other hand, is a practice that allows
Muslim men to have many wives. On February 16, 2017, the Court requested
detailed responses from Shayara Bano, the Union of India, several women’s
rights organisations, and the All India Muslim Personal Law Board (AIMPLB)
on the issues of talaq-e-bidat, nikah-halala, and polygamy. Ms Bano’s claim
that these practises are unlawful was recognized by the Union of India and
women’s rights organisations such as Bebaak Collective and Bhartiya Muslim
Mahila Andolan (BMMA). The AIMPLB has maintained that uncodified Muslim
personal law is not available for judicial examination under the Constitution
and that these are vital Islamic religious traditions safeguarded under Article
25 of the Constitution. The Supreme Court’s 5 Judge Bench issued its verdict
in the Triple Talaq Case on August 22, 2017, ruling the system unlawful by a
3:2 majority.
The Supreme Court verdict
The aforementioned practice of divorce is arbitrary, in respect that a Muslim
husband might break the marital tie unfairly and thoughtlessly without
making any effort to communicate to safeguard the marriage. The Supreme
Court, in a unanimous decision pronounced on August 22, 2017, declared
instant Triple Talaq to be a violation of Article 14 of the Constitution, putting
an end to the practice of divorce.

Danial Latifi v. Union of India, 2001

In Danial Latifi v. Union of India (2001), the Supreme Court’s decision
in Mohd. Ahmed Khan v. Shah Bano Begum appeared to be overruled by
the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter
referred to as MWPRDA, 1986). A Muslim husband was only liable for keeping
his divorced wife during the iddat period, according to a prima facie
interpretation of the MWPRDA, 1986, and after that term, the responsibility
of keeping the lady shifted to her relatives. The issue came to the light when
the constitutional validity of the Muslim Women (Protection of Rights on
Divorce) Act, 1986 was questioned on the grounds that the law was
discriminatory and violative of Articles 14 and 21 of the Indian
Constitution. The fact that Article 14 was being violated because Muslim
women were being deprived of the maintenance benefits of Section
125 of Criminal Procedure Code, 1973. Also, it was pointed out that the right
to life guaranteed under Article 21 was being violated as the law will leave
Muslim women in a state of helplessness.
Judgment in the case
The Supreme Court maintained the validity of the MWPRDA, 1986, based on
critical analysis. It was decided that a Muslim husband is responsible for
making appropriate and equitable arrangements for his divorced wife’s future
beyond the iddat period. This approach was founded on the term “provision”
in the MWPRDA of 1986, which said that, “at the time of divorce the Muslim
husband is required to contemplate the future needs [of his wife] and make
preparatory arrangements in advance for meeting those needs”.

Conclusion
Muslim law is an integral element of Indian laws and must be understood and
implemented in the similar manner as any other law in the country. Despite
the fact that most of it is uncodified, Muslim personal law has the same legal
significance in India as other religions’ codified personal laws, such as the
Hindu Marriage Act of 1955 and the Christian Marriage Act of 1872. The
Hon’ble Supreme Court of India has taken into account that women’s rights
are not being neglected or discriminated against on any grounds by
delivering progressive judgments. This has developed in contribution to
Muslim law to have a newer perspective with the landmark cases. Adding
more to this, the judgments have set up a platform of a level playing field
and thus, leading to the formation of an egalitarian society.